(After stating the facts.)
It appears from the petition, that, "in accordance with the request made” by defendant upon plaintiff, in the letter of July 1, 1907, written and addressed to plaintiff’s agent, Jewett, plaintiff, on the morning of the 18th of the same month, requested of defendant’s master of trains at Macon, who wrote this letter for defendant, and who was in charge of the business of placing cars, to have one refrigerator car placed at Elberta on that day and another at the same place on the following day. In reply to this request of plaintiff, the master of trains immediately notified plaintiff that a car would be furnished that day, if possible, but that there were no empty Fruit Growers Express cars in Macon that morning. Later during the same day plaintiff was notified by the master of trains that defendant would be unable to furnish a car that day, but would be in position to furnish all cars needed by noon the following day. "Whereupon petitioner immediately notified defendant that the fruit was picked, packed, and on the platform, and that petitioner must'have one ear to-day and one to-morrow to move same, as the fruit was ripe.” Do these allegations show the making of a contract between plaintiff and defendant? To consummate a contract there must, of course, be mutuality of assent to a certain definite proposition. Prior to the order given by plaintiff on July 18, defendant had notified plaintiff that the Fruit Growers Express had informed defendant that all orders for cars received after 6 p. m. would be accepted subject to delay in' furnishing them, and that therefore it was necessary for defendant to receive orders for such cars before 6 p. m., to enable the Fruit Growers Express to have sufficient time to ice them and to get them on the morning *688trains. Nothing is urged in the petition against the validity of this notice, but, on the other hand, it seems clear that plaintiff accepted the terms of the notice as part of the agreement, and gave the order for the two cars in full recognition of the right of the defendant to require the notice; as it is alleged that plaintiff, on July 18, gave this order “in accordance with the request made” in defendant’s letter of July 1, giving the notice in reference to furnishing refrigerator cars. Plaintiff’s order was for one car to be placed at Elberta on Juty 18, the same day the order was given, and another car to be placed at the same station on the morning of the following day. Under the terms of the notice to be given the defendant, it was not bound to furnish a car on the same day it was ordered, and defendant did not agree to furnish a car on that dajq. but notified plaintiff that it would do so if possible, but there were no empty Ffuit Growers Express ears in Macon that morning; and later in the day it notified plaintiff that defendant would be unable to furnish the car that day. It is therefore obvious that defendant never agreed to furnish a car on the 18th of July, and that for a failure so to do plaintiff had no cause of action. So much, however, can not be said in respect to the transaction as to the ear ordered for the 19th of July. In ordering the ear for that day, plaintiff fully complied with the terms of defendant’s notice. The order was given before 6 p-. m on the 18th of July, for a car to be furnished on the next day, and moreover the defendant aecepted such order and agreed to place the car as ordered. This it failed to do, and therefore plaintiff had a cause of action for defendant’s breach of the contract. It follows that the general demurrer to the petition should not have been sustained, in so far as damages were sought to be recovered for the delay of the defendant in furnishing the one car which it had agreed to place at Elberta on the 19th of July.
The question as1 to the measure of damages for such delajt is not up for adjudication, as a special demurrer was sustained to the paragraph of the petition in which the damages were specifically set forth; and while error was assigned upon such ruling, no reference to it appears in the brief of counsel for plaintiff in error, and the point must therefore be considered as abandoned. In one paragraph of the petition, however, which was not specially demurred to, it was alleged that by reason of defendant’s delay in furnishing *689the ears plaintiff had to repack the peaches, and in so doing used fifty bushels of fresh peaches, and the value thereof and the expense of repacking were set forth. And in another paragraph, not so demurred to, it was alleged: "On account of the unnecessary delay and negligence of said defendant company to furnish said cars and comply with its contract, petitioner has been damaged in the sum of $650.32 on account of the damaged condition of said peaches when said peaches arrived in New York, the point of destination.” The brief of counsel for plaintiff in error does not refer to any assignment of error upon the rulings of the court sustaining special demurrers to the petition; and therefore we have not dealt with them further than they were necessarily involved in the brief of counsel for plaintiff in error in the discussion of the assignment of error upon the ruling sustaining the general demurrer. Inasmuch as the court erred in sustaining the general demurrer to the petition, to the extent above indicated, direction is given that the plaintiff be allowed by the court an opportunity to amend the petition to meet the special demurrers thereto.
Judgment reversed, with direction.
All the Justices concur.